Illinois Statutory Summary Suspension Law

The Concept of Implied Consent in DUI Cases

Nov 2, 2008
David J. Shestokas

Beer Bottle - Vivek Chugh

On January 1, 1986, statutory summary suspensions were added to the laws of Illinois against drunk driving. These suspensions arise from the concept of implied consent.

Illinois law says that if someone drives, the government may take a blood, breath or urine sample to determine alcohol content or the presence of illegal drugs. Failure to submit to to chemical testing for these determinations results in loss of one's driving privileges.

Through the process of obtaining a driver’s license a person in Illinois one gives consent to chemical testing. If a police officer has a reasonable belief that person is driving under the influence of alcohol or drugs, the officer can request the person to submit to testing.

The Theory of Implied Consent

The theory is that during the driver licensing process, Illinois issues the license, and the licensee agrees to follow the rules of the road, including not driving under the influence of alcohol or drugs. That agreement stands for consent to chemical testing.

Statutory Summary Suspension

A statutory summary suspension means that driving privileges will be suspended for a specified period of time and then reinstated. This suspension is imposed if there is a (BAC) blood alcohol concentration of .08 or greater or if there was a refusal to submit to chemical testing or the chemical testing of blood, breath or urine revealed the presence of an illegal substance.

License Penalties and Refusal of Testing

While someone may refuse to be tested, there are driver license consequences for that refusal. The license penalties are as follows:

There is a 6-month license suspension for a first offender testing greater than .08 BAC (blood alcohol concentration) or having any amount of a designated controlled substance in his blood, breath or urine after a DUI arrest.
There is a 12-month license suspension for a first offender refusing a blood, breath or urine test after DUI arrest.
There is a 1 year suspension for a second offender testing greater than .08 or having any amount of a controlled substance in his blood, breath or urine after DUI arrest.
There is a 3-year suspension as a second offender refusing a blood, breath or urine test after DUI arrest.

The license penalties increase for refusing to submit to chemical testing based upon the theory of implied consent. License suspension penalties lengthen for someone who has had a statutory summary suspension within the prior 5 years. Someone with a prior suspension in that 5 year period is not a first offender. Driving during the suspension is a criminal offense. A guide to restoring driving priviliges for this suspension and other Illinois suspensions can be found at Get Your Illinois Suspended License Back.

During a DUI arrest the officer will take the suspect’s driver’s license. After either testing or refusal, if a driver’s privileges are otherwise valid, the officer will provide a temporary receipt to drive for 45 days. The statutory summary suspension begins on the 46th day after the arrest.

Petition to Rescind Statutory Summary Suspension

There is a right to a judicial hearing on the suspension. This hearing does happen automatically. The suspended driver must request the hearing by filing a petition to rescind the statutory summary suspension. This petition must be filed within 90 days, or the driver loses the right to a hearing.

At the hearing the judge may order the suspension lifted or rescinded. After hearing evidence the judge will decide if any of the following circumstances exist:

There were no reasonable grounds for a DUI arrest.
The driver was not properly warned by the officer regarding the consequences of taking or refusing the chemical tests.
The test results revealed a BAC of less than .08.
The driver did not refuse to take a chemical test.
The driver was not properly placed under arrest for a DUI violation as evidenced by the issuance of a Uniform Traffic Citation.
The arrest was without probable cause
The driver’s due process rights were violated.

If any one of the above circumstances exist then the judge will enter an order for the Illinois Secretary of State to lift the suspension. Should the judge determine that none of the above apply, he will deny the petition to rescind and confirm the suspension.

The Judicial Driving Permit

Should the judge confirm the suspension, the driver may petition the court for a Judicial Driving Permit. This allows for limited driving privileges for work, education or medical purposes. To qualify for a judicial driving permit, (JDP) a driver must:

Not have had a Statutory Summary Suspension within the last five years, and
Completed an acceptable professional alcohol evaluation, and
Have not been convicted of Reckless Homicide within the previous five years, and
Have an otherwise valid driver’s license

For those arrested after January 1, 2009 a the option to obtain a JDP no longer exists. It will be replaced by a Monitoring Device Driving Permit (MDDP). For information on an MDDP, please see: Illinois 2009 DUI laws.

License Suspension and DUI Prosecution

Persons involved with statutory summary suspension issues need to remember that the proceedings regarding their driving privileges are separate and apart from the criminal aspects of the DUI prosecution. It is entirely possible to be found not guilty of the DUI and still have a lengthy suspension as a result of the arrest.

David J. Shestokas - Mr. Shestokas is a former prosecutor & writes on the Constitution & legal issues for the Save America Foundation & Suite 101.

Comments

Dec 17, 2008 7:29 AM

Guest :

if driver is on private property do implied consent laws apply?

Dec 19, 2008 4:12 PM

David J. Shestokas :

The relevant Illinois Statute is as follows:
"(a) Any person who drives or is in actual physical control of a motor vehicle upon the public highways of this State shall be deemed to have given consent, subject to the provisions of Section 11-501.2, to a chemical test or tests of blood, breath, or urine for the purpose of determining the content of alcohol, other drug or drugs, or intoxicating compound or compounds or any combination thereof in the person's blood."
Therefore, implied consent laws do not apply on private property.

Jan 11, 2009 2:21 PM

Guest :

Implied consent laws would still apply if the offender was seen operating a motor vehicle on a public street. Pulling onto private property would not deter the officer from requesting a chemical test to see if the offender was in fact under the influence.

Jan 11, 2009 8:03 PM

David J. Shestokas :

A person who is observed by an officer operating a vehicle on a public highway committing an offense may be followed onto private property after that offense. If there were evidence gathered leading to a reasonable belief that the driver was under the influence of alcohol, the officer could legally request the driver to take a chemical test. That would be because of the observation of the driver on a public highway, although the arrest ultimately took place on private property.

May 13, 2009 12:44 PM

Guest :

If an order to Rescind an Illinois summary suspension has been entered by the secretary of State, even though it was rejected by the judge, and a person's driving privaledges have been restored, can the BAC information be used in trial?

May 15, 2009 2:16 PM

David J. Shestokas :

While the issues in a DUI trial are similar to the issues at a Statutory Summary Suspension hearing, the outcome of each process is independent of the other. It is entirely possible to win a suspension hearing and lose the DUI trial or to win the DUI trial and lose the suspension hearing. The short answer to your question is yes, testing evidence may not be admitted at one hearing and admitted at the other and action of the Secretary of State is unrelated to the outcomes in court.

Jun 6, 2009 10:25 PM

Guest :

If a Petition to Rescind is granted and a Summary Suspension is rescinded for a first-time offender, would the defendant once again be considered a first offender if he recives another Summary Suspension within the following 5 years?

Jun 7, 2009 6:49 AM

David J. Shestokas :

If the petition was rescinded it is like the suspension did not take place, since the judge found it had been issued improperly. As a result of that situation, an individual in the situation described would be a first offender for purposes of summary suspension law. Depending upon the outcome of the DUI he might not be a first offender for purposes of DUI law. The two situations are related, but they are not identical. See my other article: Illinois DUI Law: A Criminal and a Civil Case.

Jul 27, 2009 6:44 PM

Guest :

If a judge denies a Petition to Rescind, and the Secretary of State erroneously proceeds to rescind a suspension and restore an individual's driving privileges, will the court find out and reverse the rescind order? If so will the driver in this situation be notified that his/her license will be re-suspended or will the suspension just go back into effect once the error is fixed, as if nothing ever happened?

Jul 27, 2009 7:30 PM

David J. Shestokas :

In response to the question, the Secretary of State will not specifically notify the court, and the mistaken entry is likely to be corrected by the Secretary of State. The court or the clerk of the court may have sent in a mistaken order to the Secretary. That may be the reason for the error. To my knowledge there is no method in place for that mistake to be corrected. Should the court become aware, it is possible that a corrected order will be sent and the suspension would be reinstated. It would likely be a mistake to drive prior to the normal time the suspension would end.

Aug 6, 2009 5:50 PM

Guest :

For purposes of determining "first offender" status, when does the 5-year period begin? Is it the date of the actual failure or refusal of a test, or is it the date the original SSS is terminated? For example, suppose in 2009 I refuse a test and receive a 12-month SSS. In 2014 I refuse another test and receive a SSS again. Would I be considered a "first offender"? It has been over 5 years since the date I refused the first test, but it has only been 4 years since my driving privileges have been fully restored. Let's assume the original DUI criminal case was dismissed and the 5-year period is the only determining factor of my "first offender" status.

Aug 6, 2009 7:29 PM

David J. Shestokas :

The five year time period to determine first offender status for statutory summary suspensions begins to run at the end of the previous suspension. Regarding the hypothetical given, the five year period begins at the end of the one year suspension. In reality the five year period is five years plus the period of the prior suspension, plus the 46 days that runs before the suspension goes into effect.

Dec 17, 2010 9:42 PM

Guest :

i was arrested for a DUI and refused the breath test conducted by the police but went to the hospital as soon as bond was posted and paid for my own independent BAC test within 1 hour time is this still considered a refusal of chemical testing?? can my test be used to rescind the stat. sum. supension.?????

Jan 9, 2011 3:12 PM

Guest :

I was arrested for suspicion of DUI on November 6, 2010. I was belching so they couldn't administer a Breathalyzer test. I was more than cooperative in going to the hospital in order to submit to a blood test. The results were not immediately available. I posted bond and immediately hired an attorney. She filed her appropriate motions, one being a motion for discovery so we could learn the results. On December 16, 2010 the answer came back, and I was over .08. Subsequently, a second charge was filed, as well as a statutory summary suspension, a warning to motorist, and a sworn report from the police officer. On December 17, 2010 the police sent a certified letter to me, which i received on December 22, 2010. The Illinois Law states that my license will be suspended on the 46th day following the notice of statutory summary suspension. The problem here is, when the officer drew the papers up, he wrote that I was receiving this paperwork on my arrest date, not the date the results came back. The officer even signed it on December 16, 2010 and it had the uniform citation number that didn't even exist until December 16, 2010 but he wrote "date notice given" as November 6, 2010. Therefore the secretary of state suspended my license effective December 22, 2010. The same day I received notice that I had 45 days from the date I received the notice. My question is, was there violations to my 5th amendment right to due process? I was guilty and had to face punishment before I was allowed the opportunity to a hearing. I would like punitive damages for depriving me of certain liberties without due process. Am I being unreasonable?

Jan 9, 2011 3:12 PM

Guest :

Feb 4, 2011 1:56 PM

Guest :

I just won the Statutory Suspension case because of an improper arrest. What are the chances of winning the DUI case as a result of this? Thanks!

Feb 10, 2011 3:45 PM

Guest :

i have two duis in illinois 1 i was convicted for dui in 2009 i blew and was above limit. 2nd dui was a month later and did not blow or did anything i ended up wining the 2nd but now my license is suspended for 3 years. And i did not fight to resend the statutory suspension within 90 days what can i do to obtain some what permit to drive can i still try and fight it or am i out of luck. I went to the dmv and tried to apply for somewhat license but was denied because of my second offense is their a way of obtain any license or permit before the 3 years?

Mar 22, 2012 3:28 PM

Guest :

If my sentence was 60 days and i got time served already, can the judge still put me back in jail for up to 364 day's because i haven't paid my entire fine yet?

18 Comments

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